Tuesday, August 01, 2017

Democracy, Constitutions, and Courts--Abroad and at Home

by Michael Dorf
The beginning of August for me heralds the new academic year. The registrar sends out reminders to post syllabi. The annual supplement to my casebook arrives in the mail. Despite the heat, my thoughts turn to the new batch of eager 1Ls that will shortly arrive for me and my colleagues to corrupt.

The coming semester will mark the first time I have taught constitutional law during the Trump presidency. I taught federal courts in the spring, for which various Trump policies--especially the Travel Ban--provided grist for discussion. But the federal courts issued raised by the Trump administration, like the subject in general, were somewhat technical.

By contrast, thinking about Trump and the Constitution writ large provides an opportunity to think about the very nature of constitutional democracy. Things long taken for granted--like the fact that a president would not attempt to cancel an election or refuse to accept the result of one--may now be discussed as more than fanciful hypotheticals. The distinction between stable democracies and fragile ones becomes somewhat less important as we contemplate the fragility of our own democracy. That, in turn, suggests a wider scope for comparative analysis. Accordingly, I want to consider some lessons we might learn about the relation among democracy, constitutions, and courts from recent events in Poland, Pakistan, and Venezuela.

Poland was the first Soviet bloc country to successfully assert itself prior to the end of eastern European communism. Revolts in Hungary (in 1956) and Czechoslovakia (in 1968) met with military force, but Lech Walesa's Solidarity movement did not, and its success marked the beginning of the end. From the emergence of Solidarity to the fall of the Berlin Wall less than a decade passed. There followed a period of transition, culminating in Poland's adoption of a new constitution in 1997 and full admission to the European Union in 2004. Chapter VIII of the constitution guarantees judicial independence.

Or at least it did until last month, when the Polish parliament passed bills that would have given its nationalist government the authority to pack the courts. Protests within Poland and EU pressure led President Andrzej Duda to veto two of the measures, breaking with the nationalists. For now, constitutional democracy in Poland survives, but it is worth noting how close it came--and may yet come--to collapsing. Duda might well have signed the measures, which appear to violate the Polish constitution. Indeed, he did sign one of three measures.

We can draw a lesson here: Constitutions establish the ground rules for politics, but politics ultimately determines the survival of constitutions. James Madison used the phrase "parchment barriers" in Federalist 48 to refer to lines demarcating the boundaries of the branches of government. He was right of course, but his solution ultimately exhibits the same problem. In Federalist 51 Madison wrote that "[a]mbition must be made to counteract ambition." The concept works reasonably well--but only so long as the key actors abide by the basic ground rules. Legislators may choose to work with an overreaching executive of their own party or, even if they resist, they may find themselves unable to stop a defiant executive riling up the People. At some level, all constitutional provisions--including the ones that, when followed, create incentives for ambition to counteract ambition--are parchment barriers.

If the lesson of the near-miss in Poland is that an independent judiciary exists, at some level, as a result of voluntary adherence to rule-of-law norms by political actors, the lesson of Pakistan and Venezuela is that judicial "independence" is a loaded term. As Anil Kalhan explained in a 2013 article in the Vanderbilt Journal of Transnational Law, in countries that occupy a "gray zone" between democracy and authoritarianism, judicial independence has a dark side: It often means independence from the People's elected representatives--not for the sake of fidelity to a higher law enshrined in a popularly chosen constitution, but for the sake of fealty to military rulers or other representatives of the deep (undemocratic) state.

Prof. Kalhan had good reason to use Pakistan as a key example in his 2013 article. Anyone who had read the article or was otherwise familiar with Pakistani law and politics was accordingly alarmed when Pakistan's Supreme Court recently dismissed the prime minister from office. Writing in the New York Times, Aqil Shah warned those who saw this move as a blow against corruption that it holds deeper meaning: "Pakistan’s superior judiciary—made up of the Supreme Court and five High Courts—has increasingly asserted its independence and power in recent years. But it has an abysmally poor record of defending democracy against authoritarian interventions."

Just so, except for the "But." As Prof. Kalhan has explained, independence here means independence from elected leaders in favor of the deep state. There is nothing surprising about judicial independence working against democracy, because that is what such independence means in the Pakistani context.

Meanwhile, in Venezuela, Nicolas Maduro's effort to rewrite the nation's constitution in his favor was approved by a Supreme Court that his own party filled when it had a legislative majority.

The Pakistani and Venezuelan supreme courts mirror one another. In Pakistan, the Supreme Court asserts its independence from the elected prime minister in a way that threatens to bring on rule by a dictator. In Venezuela, the Supreme Court declares its fealty to an elected prime minister in the service of his efforts to transform himself into a dictator. Damned if you do judicial independence; damned if you don't.

We like to think that the law provides a way out of this dilemma. Courts, we think, should be independent of the particular elected leaders of the day, owing their fealty not to the deep state or the military, but to the constitution and the laws. Obligation to law in this sense need not entail any particular approach to interpreting the law--just the notion that the law is something other than the current whim of any person or persons.

Understood in this way, law is a safe path between the Venezuelan Scylla and the Pakistani Charybdis. But only so long as a country's institutions--including, crucially, its military--accept the authority of the courts in construing the law. And that brings us back home. The authority of courts--here, as in Poland, Venezuela, Pakistan, and everywhere else--rests ultimately on the willingness of the people who maintain a monopoly on the legitimate use of force to accept the authority of courts.

Viewing events through the lens of gray zone countries leads to the conclusion that the most significant constitutional development during the Trump administration so far may be Trump's attack on the impartiality and authority of the courts. With three justices having made clear that they will defer to Trump, it falls to the rest of the "so-called" judiciary to check him. As our own history and current events around the world illustrate, however, they cannot do the job without support from elected officials and, ultimately, the People.

5 comments:

"The authority of courts--here, as in Poland, Venezuela, Pakistan, and everywhere else--rests ultimately on the willingness of the people who maintain a monopoly on the legitimate use of force to accept the authority of courts."

brings to mind Trump's claim during his campaign that he was "smarter than the generals" in the context of fighting wars. Yet he has nominated/appointed generals to key positions in his Administration, including most recently as his Chief of Staff. Does Pres. Trump still think he is smarter than the generals? Do these generals think that Trump is smarter than they are? Consider General Haig's service in the Nixon and Reagan Administrations. Consider Trump's treatment of General McMaster, his National Security Advisor. What might be the reaction of the monopoly Mike references if Pres. Trump similarly treated General Kelly?

So how differently will Mike teach his ConLaw course this Fall? Superimposing Pres. Trump might dilute the course timewise. Perhaps law students during Nixon/Watergate may have had an experience that might be relevant. How differently will ConLaw courses generally be taught this Fall?

The current issue with respect to the ACA and CSR Payments seems to me to be a fantastic exercise in teaching Con Law.

When ACA was passed the law explicitly required the government to make the Payments. Here is the exact wording of the statute, 42 US Code 18071

"(3)METHODS FOR REDUCING COST-SHARING

(A)In generalAn issuer of a qualified health plan making reductions under this subsection shall notify the Secretary of such reductions and the Secretary shall make periodic and timely payments to the issuer equal to the value of the reductions."

This is clear, formal and unambiguous.

So President Obama directs the Secretary to make the payments as required by law. The Congress sues the President arguing that the Congress has not authorized or appropriated the funds and thus the President cannot make the payments even though the Congress required the President to make the payments. And a federal court agrees that the President cannot make the payments even though he is legally required to do so and it would seem that failure to do so would violate the “Take Care” provision of the Constitution.

How the hell can this take place? How can the system put a President in this position. How can the President fulfill his Constitutional obligations if fulfilling them results in is violating the Constitution and not fulfilling them violates the Constitution? (The situation seems very similar to the Dorf/Buchanan trilemma issues with respect to the Debt Ceiling Law).

I have no answer to this conundrum, maybe Mr. Dorf and his ConLaw class can solve it.